One of the most important state Supreme Court cases in years

Justices will hear Cooper v. Berger and Moore next week and the stakes couldn’t be much higher

One of the most important matters to come before the North Carolina Supreme Court in a long time will be argued next Monday in Raleigh. At issue is nothing less than the basic structure of two vital North Carolina government agencies, the fairness of future elections and whether the state’s duly elected governor will be able to exercise the powers that voters thought they conferred upon him last November. As a practical matter, the case is also likely to have an enormous impact on the broader hard right policy agenda that state lawmakers have been aggressively inflicting upon the state since 2011.

The case in question is Cooper v. Berger and Moore – one of several challenges filed by Governor Roy Cooper and others against conservative legislative leaders as a result of their repeated efforts to limit his powers after his electoral victory last November.

As readers will have no trouble recalling, upon Cooper’s election last November – a victory that the defeated incumbent Pat McCrory and his fellow Republicans sought to contest for weeks – state lawmakers convened a special session just prior to Christmas with the objective of passing bills to remove power from the governor and, in most instances, transferring them to the General Assembly.

“They [legislative leaders] are motivated, not by seeking to do good for the state, but by imposing their personal partisan and ideological views, regardless of the popular will. They maintain power by unconstitutionally manipulating election laws and gerrymandering representative districts.

Now, when a majority of the state’s voters picked a new governor not of their liking, they are rushing to make ill-conceived changes in essential functions of state government, strip the governor of long-standing authority and duties while dishing out plum state jobs and judicial appointments to their political pals.

It is not a picture of political prowess and finesse. Rather it is a portrait of the arrogant ham-handedness of grown-up school yard bullies.”

State election structures at issue

This particular Cooper v. Berger and Moore stems from a bill passed during that special session and signed by McCrory that took the dual action of combining the state Board of Elections and state Ethics Commission into a new agency and greatly diminishing Cooper’s power to appoint the new governing members.

After Cooper’s initial court challenge succeeded in obtaining a decision by a three-judge panel striking that law down as unconstitutional, lawmakers rewrote the proposal and passed it again over a Cooper veto in April. This is from a summary of the latter law authored by voting rights experts at the Brennan Center for Justice at the New York University School of Law:

“Among other things, the new law combines the State Board of Elections with the State Ethics Commission into one evenly-divided eight-member body. The Governor’s power over appointments to the Board is severely limited: the Republican Party and Democratic Party each provide the Governor with a list of six nominees, and he must choose four members from each list. The law further provides that the Executive Director of the current state Board of Elections, a Republican, would become Executive Director of the new combined agency. Any action—including removal of the Executive Director—would take a vote of six of the new Board’s eight members. The law also restructures each of North Carolina’s county boards of elections so that they too would be evenly-divided instead of controlled by the Governor’s party. Chairmanship of the state and county boards would rotate annually, with the party that has fewer state-wide registrations (which has always been Republicans) chairing during even-numbered (i.e. election) years.”

The case has now found its way to the Supreme Court, which has, essentially, frozen things in place by prohibiting any appointments to the new combined board and expediting arguments so that the case can be decided quickly.

Why this case is so important

As the interest of a national voting rights organization like the Brennan Center indicates, the importance of this case goes well beyond the specifics of a power struggle between a governor and a legislature. As the “friend of the court” brief filed by Brennan Center lawyers argues persuasively, the law in question represents a blatantly unconstitutional and sadly typical attempt by conservative forces to alter and manipulate basic electoral rules so as to “entrench” themselves in power:

“…the reorganization of North Carolina’s electoral machinery in Session Law 2017-6 is no ordinary encroachment by one branch of government on another, but the centerpiece of a sweeping effort by the General Assembly to entrench one political party in power regardless of its loss of voter support. Unless this Court intervenes, the challenged law would foster precisely the sort of unchecked, unaccountable government dominated by one faction that the separation of powers exists to prevent.

Political entrenchment is more than partisan or factional advantage. It reflects the manipulation of electoral rules and governmental structures to make it so that the rule-making party prevails irrespective of the voters’ will. The rules governing democracy may at times benefit one side. Entrenchment happens when the group in power tries to make that advantage permanent. That is the case here.”

In other words, the law in question is – like similar efforts to remake the court system, gerrymander electoral districts and amend the state constitution to lock in current tax rates and spending limits – part of a concerted, take-no-prisoners strategy by conservatives to radically overhaul state government and then render it all but impossible for leaders elected at a later date to make any meaningful changes to their destructive handiwork.

If you have any doubt of legislators’ intent, look no further than the simple and almost laughable fact that the new scheme would guarantee Republican control of the chairmanship of the new state board created by the law and all county elections boards during all years in which there is a presidential, gubernatorial and council of state election. As another friend of the court brief in the current case – this one filed by former Governor Jim Hunt and former Supreme Court Chief Justice Burley Mitchell – points out: “Beneath its veneer of bipartisanship…the Act’s unmistakable intent and effect is to calcify the current General Assembly’s partisan preferences by depriving the Governor of ‘enough control’ over the new State Board to perform his duty to faithfully execute the law.”

Undermining Cooper’s governorship

Of course, there’s more to the law in question and other similar attacks on Cooper’s power than long-term ideological change. GOP leaders are more than happy to enfeeble the governor in the near term as well and, make no mistake, that’s part of the push.

shrink the state Court of Appeals (and thereby deprive Cooper of his right to fill three vacancies scheduled to occur due to mandatory retirement),

remove the governor’s power to control the Industrial Commission and ram through the appointment to it of the wife of Pat McCrory’s one-time chief of staff, and amazingly,

pass legislation telling the governor what he must include in his annual proposed budget – including funding for school vouchers!

The bottom line

Historically, the office of governor in North Carolina has not been as powerful as it is in many other states. North Carolina chief executives are term-limited, have no “line item veto” authority and, indeed, were the last in the country to obtain even limited veto authority.

In the event, however, that the Supreme Court were to somehow uphold the changes advanced by legislative Republicans, what amounts to a fairly weak office would quickly be transformed into an utterly toothless and ceremonial one. It would be just a matter of time before legislative leaders would quickly follow up on their actions to pass new laws further limiting the governor’s powers in any number of ways.

Let’s hope the Supreme Court doesn’t let it come to this. North Carolinians may wish to have a discussion about the relationship between the executive and legislative branches but if that’s the case, the proper vehicle is via thoroughly vetted constitutional amendments, not hasty and transparently partisan backroom power grabs.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.rob@ncpolicywatch.com
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